Court OKs Memphis library photo cards for voting

NASHVILLE -- The state Court of Appeals upheld the constitutionality of Tennessee's voter-photo identification law Thursday afternoon but also ordered that new photo library cards issued by the Memphis Public Library be accepted for voting by otherwise qualified, registered voters.

The order is at least a partial victory for the City of Memphis, which originally filed a lawsuit in July asking that its new photo library cards be accepted for voting purposes by qualified registered voters. The city filed the lawsuit after the Shelby County Election Commission denied the cards as unacceptable under the law because they are not issued by a "state entity."

State election officials said late Thursday they have told Shelby County Election Commission officials to allow voters who present Memphis Public Library photo ID cards to vote on provisional ballots until the issue is resolved through an appeal to the Tennessee Supreme Court that the state will file Friday.

Provisional ballots are paper ballots filled out by voters, who place them in sealed envelopes for hand-counting later by election officials. But if the courts later overturn Thursday's state Court of Appeals ruling – and the voter doesn't later show up with a proper ID – the provisional ballots won't be counted.

The Court of Appeals ruling says:

"In light of the fact that the period of early voting for the November 6 election is currently underway, Defendants (Secretary of State Tre) Hargett and (State Election Coordinator Mark) Goins are hereby ordered to immediately advise the Shelby County Election Commission to accept photo library cards issued by the City of Memphis Public Library as acceptable "evidence of identification" as provided at Tenn. Code Ann. § 2-7-112(c)(2)(A).

"The case is remanded to the Chancery Court for Davidson County for enforcement of the judgment and order.

"It is further ordered that the costs of this appeal be taxed against appellees, for which execution may issue if necessary."

The city and its two co-plaintiffs in the lawsuit, two Memphis registered voters who lack voter photo identification acceptable by the state, had also sought to have the state statute declared unconstitutional on the grounds that it adds another "qualification" for voting in Tennessee beyond the four listed in the Tennessee Constitution: 18 years of age, a citizen of United States, a resident of Tennessee and properly registered in the voting precinct."

But the court ruled that the law, approved in 2011 and effective with this year's elections, is constitutional.

"...we note that the Voter Photo ID Act has created much controversy and aroused intense feelings among both its supporters and its detractors. The courts do not question the General Assembly's motives or concern themselves with the General Assembly's policy judgments. These limitations arise from the separation of powers doctrine found in Article II, Secs. 1 and 2 of the Tennessee Constitution. The separation of powers doctrine places limits on each of the three branches of government. The role of the courts is to 'interpret and apply' the law."

The Court of Appeals is the third venue for the lawsuit and the first victory for the city. The lawsuit was originally filed in July in U.S. District Court in Nashville, but the plaintiffs later withdrew it after both a judge and a magistrate initially declined to enjoin the state from denying the cards. The city refiled the case in Davidson County Chancery Court, where a judge ruled last month that the city lacked standing to sue. Memphis appealed to the Court of Appeals.

The Court held that the provision of the Tennessee Constitution giving the state legislature authority to enact laws to "protect the purity of the ballot box" allowed them to require photo IDs.

"The legislature has determined, pursuant to its authority to secure the integrity of elections, that requiring photographic identification will advance the state's interest in preventing in-person voter fraud. We agree that the requirement bears a substantial relation to the state's interest. Photographic identification is a logical method of protecting the integrity of elections by combating in-person voter fraud. Outside of fingerprints or DNA, a photograph is probably the best way to make sure a voter is the person he or she claims to be.

"Showing a photo ID is not a significant intrusion or burden. In our world today, photo identification cards currently are needed to board a plane, enter federal buildings, and cash a check...

"While this requirement may impose an extra step in exercising the right to vote for those who have to acquire a photographic identification card, the United States Supreme Court has stated that this burden is not substantial."

In defending the state law, the state attorney general's office had argued that the City of Memphis and its library are not "an entity of this state" under the provisions of the photo ID law.

But the court ruled that "Tennessee case law supports finding that the city is 'a branch, department, agency or entity of this state.' The Tennessee Supreme Court has observed that, "[i]t is beyond question that a Tennessee municipality is an agency of the state exercising a portion of the sovereign power of the state for the public good.' We hold that (state law) allows the City of Memphis, through its public library, to issue photographic identification library cards that can be used by voters to satisfy the identification requirements of (the voter photo ID act)."

But the Republican-controlled legislature may try to amend the law to explicitly prohibit photo IDs issued by local governments to be acceptable for voting -- as the law already explicitly bans student IDs issued by Tennessee colleges and universities, including those operated by the state.

State House Republican Caucus Chairmwoman Debra Maggart, who sponsored the voter photo ID bill in the House, called Thursday's ruling "legislating from the bench."

"While I am encouraged our law was ruled constitutional, the fact the Court decided to add to it is disappointing," said Maggart, R-Hendersonville. "Not only has the Court gone beyond the clear intent of the law by allowing library cards, it has also created an exception for the city of Memphis that falls below the standard for the rest of Tennessee. This is the definition of 'legislating from the bench' and, frankly, is unacceptable.

"Tennesseans overwhelmingly support a common sense photo identification requirement that ensures the person issued the ID is, in fact, a citizen of Tennessee. Since the library system is not equipped to verify an individual's legal status, the Court has purposefully undermined the will of Tennesseans with today's decision."

Maggart lost her bid for re-election in the August GOP primary, but her colleagues are likely to take up the issue.

City Atty. Herman Morris praised Memphis Mayor A C Wharton for having the "courage" to press the issue.

"He took this issue on because of the importance of making sure that the citizens in the city of Memphis are able to exercise their fundamental, constitutionally given right to vote," said Morris. "He stood alone in this entire state challenging this act and advocating for a more feasible, more accessible and easier way to satisfy this voter ID card mandate."

Wharton said making it easier for people to vote was his overwhelming concern.

"At a time in which we admonish and criticize and chastise folks for not voting anything that we can do to open wider the doors to the ballot box is indeed a step in the right direction and for the right reasons," said Wharton. "We ended up where wee want to be."

Wharton said he relied on the state law when creating the library IDs.

"What the court did was read the law in its entirety," said Wharton. "What those who opposed the library card said was that it ran afoul of the state's responsibility to ensure the integrity, the purity of the ballot box.

"That same law states that it was designed to ensure maximum participation by all citizens. That's what we were relying on. That is, to not find ways to restrict participation but the policy of the state ought to be how can we get more participation and we felt, and still feel, and have been vindicated in our feelings, that the issuance of an ID card by a governmental agency is adequate. This is the epitome of working within the law."

Wharton also said the ID cards, available at the 16 library branches inside the city, can be used for other functions, including getting utilities from Memphis Light, Gas and Water Division.

"It is a great day not merely from an electoral standpoint but for so many other daily uses that can be made with this card," he said.

"Some have already called this ‘legislating from the bench' but what the court did was read the law in its entirety. The same law says it is aimed at maximizing participation by voters. We felt and still feel -- and are now vindicated by the decision -- that a photo ID card issued by a government agency is valid. We believe that's what the entirety of the law allows," Wharton said.

The mayor said he hopes the legislature will not try to amend the law to prohibit city-issued cards but said "we would have to deal with it if it comes up."

Wharton defended the city's approach, which election officials criticized when the library cards were unveiled in July just before early voting in the August election began. "There were two approaches to this. We could have protested and tell people to stay away, or we could do what we did -- take some steps to work within the law. This is the epitome of working within the law. We worked within the law."

The mayor said that people who will be helped by the ruling include people without driver's licenses, people who have had their voting rights restored but lack photo IDs, and people who have lost their birth certificates.

City Atty. Herman Morris praised Wharton for having the "courage" to press the issue.

"He took this issue on because of the importance of making sure that the citizens in the city of Memphis are able to exercise their fundamental, constitutionally given right to vote," said Morris. "He stood alone in this entire state challenging this act and advocating for a more feasible, more accessible and easier way to satisfy this voter ID card mandate."

State Election Coordinator Mark Goins said that based on the advice of the state attorney general's office, he's told Shelby County Administrator of Elections Richard Holden "that if somebody shows up with a library ID card, they will be allowed to vote but on a provisional ballot. It will be noted on the envelope that they used a library ID card.

"We will probably continue that up through early voting. But that could change," Goins said.

Goins and Tennessee Secretary of State Tre Hargett said they were pleased that the Court of Appeals upheld the constitutionality of the voter photo ID law but will appeal the portion of the ruling that allows the Memphis library cards to be used by otherwise qualified and registered voters.

Said Hargett: "Once again, the constitutionality of the photo ID law has been upheld. The plaintiffs said the law is an add qualification on voting and the judiciary has said no it's not. They called it a poll tax; the judiciary said no it's not. They called it a burden on voting; the judiciary said no it's not. They even said it violates equal protection, and the judiciary said no it doesn't.".